Law Council of Australia recognises positive duty to fight sexual harassment

The Law Council of Australia’s directors seek to contribute positively and proactively to workplaces free of sexual harassment and discrimination and to empower the employees, workers, and members of their organisations to do the same.

Specifically, the Council’s leaders have committed to responding to the problem of sexual harassment and discrimination within the Australian legal profession through the following actions:

• Pursuing the elimination of these behaviours by facilitating positive cultural change
• Preventing these behaviours and ensuring effective responses for those impacted within the Council’s organisations and those with connections to these organisations
• Supporting relevant education and training on the applicable legal and professional obligations and ethics, underlying causes and potential risk factors, and best practice prevention and response frameworks
• Developing and promoting elimination strategies and innovative approaches for addressing issues in the profession’s traditional and structural features
• Fostering a profession that is high-achieving, equitable, inclusive, diverse, safe, and well-equipped for the future
• Upholding a standard befitting the profession’s status, responsibilities, and community expectations, including by recognising without prejudice, bias, or deference to professional position or hierarchy that the unacceptable behaviour of even a minority can potentially impact public trust in the administration of justice
• Promoting respectful transparency if possible and as appropriate while likewise respecting privacy, confidentiality, procedural fairness, and broader obligations to enable the profession to learn from incidents, to develop best practice approaches, and to improve accountability
• Periodically reviewing strategies in implementing the positive duty to measure progress, publicly sharing review outcomes for better transparency, and adopting best practice approaches

The Council’s directors urged other leaders across Australia’s legal and justice system to make a similar commitment and to collaborate in building a safe and respectful culture for the benefit of everyone in the system and in the communities served.

Positive duty

The Council’s leaders supported the approach under the Sex Discrimination Act 1984 (Cth), which made it a positive duty to take reasonable measures to eliminate sexual harassment as much as possible and which introduced obligations for the legal profession to actively address the problem.

This approach aims to target the problem’s root causes by requiring proactive and meaningful action from law firms, legal practices, sole practitioners, barristers, chambers, and legal professional organisations, explained the Council’s statement. The approach offers opportunities for the profession to innovate and to evolve to promote gender equality and mutual respect.

The directors recognised that the positive duty aligns with the Council’s national action plan to reduce sexual harassment in the legal profession, which calls for sexual harassment prevention and cultural change in the profession.

The Council’s statement emphasised that sexual harassment is an abuse of power that is unethical, unprofessional, unlawful, and reprehensible. Sexual harassment offends the profession’s foundations, namely the principles of justice, integrity, equity, and the pursuit of excellence in public service, the statement said.

Sexual harassment undermines the dignity, safety, and autonomy of those experiencing it and leads to psychological, emotional, physical, and financial damage to both individuals and organisations, the Council’s statement stressed. Sexual harassment breaches public trust in the legal professional community, the statement added.

Sexual harassment and discrimination go against human rights – including the rights to equality, non-discrimination, health, and privacy – and against the concepts of human dignity underpinning those rights, the Council’s statement highlighted.

The Council’s leaders acknowledged gender imbalances in leadership, hierarchical and competitive workplace cultures, and high alcohol consumption in professional settings as some of the factors contributing to a higher risk of sexual harassment.

The Council’s directors recognised that the profession should move away from traditional power structures and should address underlying contributors if it wishes to eliminate sexual harassment and discrimination.

Those interested can read the statement of the Council.